This is a discussion on various aspects of the role and functions of the President of India. You are advised to answer the questions carefully and also look at the answers given by others
This is a discussion on various aspects of the role and functions of the President of India. You are advised to answer the questions carefully and also look at the answers given by others
1. The President is part of Parliament. But he can neither vote nor can he participate in its discussions. How then is he a part of Parliament?
sorry about that… the previous comment was for the first question…
The President is not a member of either the Lo Sabha or the Rajya Sabha. Parliament of India consists of the President, the Lok Sabha and the Rajya sabha. The President summons Parliament, prorogues (holds periodical sessions) and has the poser to dissolve Parliament. Unless he summons Parliament cannot meet. But he should summon each house at least once in six months. He addresses the Houses either singly jointly. He may also send messages from time to time. No money Bill can be introduced except with his permission.. All non-money bills require his approval. He can also issue ordinances when either house is not in session. He cannot take part in the proceedings of Parliament.
2. What do you think of Rajendra Prasad’s suggestion that the President should witness the proceedings of Parliament?
The president can be allowed to sit in the parliament and witness the proceedings if he had a choice to make his own decision i.e. if he was independent. Considering the 42nd amendment, the President is made out to be a personified seal -in the absolute sense of the term-and hence I personally feel that he attending proceedings wouldnt carry much weight.
But today not just the President but the entire nation can witness proceedings of the Parliament thanks to Lok Sabha TV and Rajya Sabha TV!
Aravind is both vague and circuitous, You shoud always come straight to the point. It will reveal that you are clear about the answer. The President cannot sit in the Gallery and witness the proceedings of Parliament. It would amount to interference in the work. He can always influence by gestures of he were allowed to witness the proceedings. Also he can do noshing to control the proceedings which is the task of the Speaker of the Lok Sabha or the Chairman of the Council of States. Since he is bound to agree to the recommendations of the Council of Ministers, there is no point in his watching the proceedings. Not ca he send messages asking the members to behave better. That is the task of the Presiding officer
3. Can the President send a message to the Parliament by passing the Cabinet? If he can do so what hapens to the 42nd Amendment which says that the President shall act on the advice of the Council of Ministers
Though the 42nd amendment leaves the president’s hands tied, it does not make them ineffective. He is allowed to send the message to the parliament- however it is the parliament’s prerogative to consent or decline. Nothing prevents him from sending a message.
Aravind is not completely correct. The President;s His relations with the Council of Ministers will be strained if he send a message against the Ministers. And since the PM is there to take care of government business, there is no point in the President sending messages. It might lead t a war of words. Any how it is the right of the President to send messages. Also since he can deliver his address to Parliament , he can include his messages to Parliament in the address. That again is non est since the President merely reads out what the Council of Minsters sends him.
4. Article 78 says that it is the duty of the PM to communicate to the President etc., What was the controversy between Rajiv Gandhi and Zail Singh on this matter?
Though the constitution was drafted with a good intent(by not putting everything in writing-our constitution is already the longest)and trusting future generations to be wise and decisive enough, some of our leaders failed to realise this. The constitution has no clauses relating to the communication between the president and the PM in no sense whatsoever. However, it is upto these 2 prominent offices to keep each other informed. Zail Singh had housed the terrorists in the Rashtrapati bhavan and had refused to divulge any details about them which angered Rajiv gandhi who refused to send a copy of all communications of the Indian government with foreign countries, which till then was an unwritten norm.
Aravind must avoid Obiter dicta and concentrate on the question. The President has to be informed of all decisions and can call for any information. But relations between Rajiv Gandhi and Zail Singh were so strained that Zail sibgh complained that the PM was not informing him of what was happening. It apears that Zail Sinh wasafraid of the Khalistani terrorists that he used to inform them on what government was doing. Actually a copy of all telegrams received from Indian embassies abroad or sent to them, used to be sent to the President. But Zail Singh to please the terrorists used to pass on certain information to them. Rajiv Was annoyed and held that the Council of Ministers will decide what information should be sent to the President. The legal position taken by Rajiv was wrong but Parliamentary Government functions on conventions. Conventions are unwritten rules of understanding and Zail Singh was also wrong in helping the terrorists.
5.What is article 74 (1) (which requires the Council of Ministers to aid and advise the President) and why and how was modified by 42nd and 44th amendment?
Article 74(1) requires the President to act on the advice of the Council of Ministers. This is because the Ministry is answrable to Parliament and can be removed by the Lok sabha while the President s no so answerable. Rajendra Prasad used to say that he was not a magnificent Cipher. Nehru reminded him that the Fathers of the Constitution had expressly adopted the British Parliamentary form in which the Queens is only a figure head. The controversy acquired serious proportions when the Sundicate in the Congress set up Sanjeeva Reddy who openly declared that he had a mind of his own and would not always go by the advice of the Council of Ministers. Smt. Indira Gandhi during the emergency got the Constitution amended (42nd Amendment) which expressly declared that the President shall act according to the advice of the Council of Ministers.
Article 74(1) says that the President acts on the advice of the Council of Minters. but whether he should always act according to this advice was in some doubt. Rajendra Prasad used to say that he was not a mere rubber stamp.
Already answered
6.What are the implications of Article 75? (The Ministers shall hold office during the pleasure of the President). How does it affect the right of the ministers to approach the President directly, by-passing the PM?
The Council of Ministers comes into existence only after the PM is appointed and when he resigns the entire Council of Ministers goes out. Also the PM can ask any Ministers to resign at any time and if does not, he can ask the President to dismiss him. Hence the PM is central to the life, central to its existence and central to its death. So much so Crossman says that Parliamentary Government has actually become Prime Ministerial government. The 44th Amendment modified the position very slightly. If the President finds that he cannot accept the advice as given by the council, he can ask for a reconsideration but if the Council reiterates its decision, he shall accept it.
7.The President appoints the Finance Commission. Suppose half a dozen States represent that they are unhappy with its recommendations. How should the President act in such a situation?
The President has no say. He might ask the commission to reconsider its recommendations and that is about it. If the Commission does not change its stance he will have to agree.
One might atgue that since he is elected by State Legislators also, he has to take into account their views. But this would not be correct. It is the Union Council of Minsters that recommends the members of the Finance Commission and he President appoints them. State Governments may make representations at he Planning Comision meetings and the Zonal committee meetings but it s the decision of the Union Government that is final.
8.Can he seek the advice of the supreme Court in case of a conflict between the Union and the States? or in case of a conflict between his opinion and the recommendation of the Council of Ministers , i.e., when he feels that he is required by the Council of Minsters to act unconstitutionally. In this connection what is the oath taken by him? What if while obeying the Council of Ministers , he finds that he is violating the Constitution? What should he do?
As the Constitution stands today, the decision of the Council of Ministers is final. If it it is unconstitutional some one can go to curt and complain. The President may, probably, ex abundante cautela, point out ha the decision is unconstitutional. Once he does that it s the Council of Ministers that gets the blame. Whatever the opinion of the President may be, except in certain cases, like choosing a person to form the government, accepting the recommendation of the PM who has lost his majority to dissolve the House, the President is just a constitutional head. He can refer a matter for the advisory opinion only if the Council of Ministers decides to do so. By himself he cannot.
9.What if while obeying the Council of Ministers , he finds that he is violating the Constitution? What should he do? Suppose he returns a Bill which he finds is unconstitutional and parliament passes it again what should he do?
The first part is already answered. If he returns a Bill passed by Parliament and Parliament passes it again, he shall sign it.
10. When time is of the essence of an ordinance and the President delays signing it, what should be done?
There is nothing hat any one can do. Zail Singh kept the Postal Bill unsigned even after several reminders. I can only say hat there would v=be a first class confrontation. It would or could be interpreted as violating the Constitution by the President and if the President s ready for impeachment..I do not know what would happen. The Constitution is after all a document and it depends on the persons working it. With te best of intentions things may go awry.
11. Examine the implications of the verdict in the Sham Sher Singh case. The SC held in this case ” It is indisputable that the President is only the formal or constitutional head and the real executive powers are vested in the council of ministers. But does that reduce the President to a figurehead or a mere rubber stamp? Far from it …the President in India is not at all a glorified cipher ….but actually vested with a pervasive and persuasive role.’ What is this role?
Reply to the above question by Prof. Rao himself. It is also well-settled that in terms of Article 74, both before and after the 42nd amendment as judicially interpreted, the President is required to act in accordance with the advice of the council of ministers and it is impermissible for him to act contrary to or independently of such advice. But this is not an absolute principle of universal application but a general rule which may be displaced by the compulsion of exceptional situations, some examples of which are given by the Supreme Court decision in Shamsher Singh : a) Choice of the Prime Minister; b) Dismissal of a government which has lost its majority in the House but refuses to quit office c) Dissolution of the House when an appeal to the country has become a compelling necessity.
12. What happens if the Council of Ministers asks the President to resign and he refuses? Is it a violation of the Constitution demanding impeachment ?
My reply:The advice under Article 74 is to aid and advise the President in the discharge of the executive power and functions under Article 53 of the Constitution. Consequently, the scope and ambit of the advice necessarily relate to the administration and governance of the country and to matters with respect to which Parliament has power to make laws.
Whether the President should resign or not is a matter for his individual judgement and conscience. In a situation of that kind the President cannot from the very nature of things be tendered ministered ministerial advice under Article 74 to resign upon pain of impeachment for refusing to follow such advice. To hold otherwise would make the head of the state, the symbol of our nation, a mere automation, a robot deprived of any freedom of thought or action in a matter of vital concern to him and the nation. It is impossible to countenance such an interpretation.
13.Suppose the President’s term is over and the election to fill the vacancy is not filled, what happens?
The president can hold office beyond his term of five years until his successor assumes charge. He is also eligible for re-election. He may be elected for any number of terms.
The president can hold office beyond his term of 5 year untill his successor assumes charge. he is also eligible for reelection to that office. He may be elected for any number of terms.
14, Upon the resignation, or death or removal of the President, the Vice President cannot act as President. Why? Contrast the position in the USA. What is the difference in the mode of election of the Pfresident and the Vice president?
The President is elected by a larger electorate called the electoral college. It consists of the elected members of the State Legislative Assemblies and the elected members of the two Houses of Parliament. Thus those nominated to the legislative assemblies or the Lok Sabha and Rajya sabha cannot vote. Also members of the Legislatures of the Union Territories cannot vote. However the members pf the Union territory of Pondichery and the National Capital territory of Delhi can vote. So since the President is elected by a larger body, the VP does not automatically become President. He merely acts as President till a new President is elected. In the USA however the VP becomes President for the rest of the term of the Previous President.
15.To whom should the President address his resignation letter? And to whom should the Vice President address his resignation letter?
President address his resignation letter to Vice President
Vice President address his resignation letter to President
The President sends his resignation letter to the Vice-President and the Vice-President to the President.
The President addresses his resignation letter to the VP and the VP addresses his resignation letter to the President.
16. What is the nature of the President’s veto power over Union Bills and State Bills?
A bill passed by the parliament can become an act only if it receives the assent of the president. When such a bill is presented to the president for his assent, he has three alternatives, under article 111 of the constitution.
a)He may give his assent to the bill or
b)He may withhold his assent to the bill or
c)He may return the bill (if it is not a money bill) for the consideration of the parliament.
How ever, if the bill is passed again by the parliament with or without amendments and presented to the president, the president must give his assent to the bill.
The President can only return Bills passed by parliament and if they are passed again, he has to sign the. However he has veto power over State Bulls.
17. .What is commutation?
Commutation:
It denotes the substitution of one form of punishment for a lighter form.
Example: a death sentence may be commuted to rigorous imprisonment, which inturn may be commuted to a simple imprisonment
IT denotes the substitution of one form of punishment for a lighter form
example: A death sentence may be commuted to rigorous imprisonment, which inturn may be commuted to a simple imprisonment
When a commutation is granted a higher punishment is substituted by a lighter punishment. Thus death sentence may be substituted by rigorous imprisonment; rigorous punishment by simple imprisonment and simple imprisonment by fine.
18. What is remission?
It implies reducing the period of sentence without changing its character.
Example: a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year
It implies reducing period of sentence without changing its character
example: A sentence of rigorous imprisonment for 2 years may be remitted to rigorous imprisonment for 1 year
When remission is granted , the character of the sentence remains the same but the amount of the sentence is remitted.
19. What is Respite?
It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as a physical disability of a convict or the pregnancy of a woman offender
IT denotes awarding a lesser sentence in place of one originally awarded due to some special facts, such as physical disability of a convict or the pregnency of a women offender.
When respite is granted a lesser sentence than the one prescribed is given in view of special fact. Thus in view of the pregnancy of an woman offender, a lesser sentence may be given.
20. What is Reprieve?
It implies a stay of the execution of a sentence (especially that a death) for a temporary period. Its purpose is to enable the convict to have a time to seek pardon or commutation from the president.
It implies a stay on the excution of a sentence (especially that of death) for a temperory period. its purpose is to enable the convict to have time to seek pardon or commutation from the president.
Reprieve means a stay of execution of a sentence eg. pending a proceeding for pardon or commutation
The president is the nominal head of the country-to be more precise, he is the nominal head of the state unlike the PM who is the head of the government. He is a part of the parliament owing to the capacity vested in him by the constitution to be a signatory authority-nothing more-at least in most of the cases. No legislation is said to be complete without his approval.